Will security agency be transformed – or are the changes only symbolic?

Possibly the most powerful force in Israel up to this point, the Shin Bet
(Israel Security Agency) last week may have undergone no less than a revolution,
which could handcuff its power and completely transform its method of
operation.

The state’s moves toward establishing a new department in the
Justice Ministry solely dedicated to investigating complaints against the Shin
Bet and its interrogators reached a major point with the appointment of former
head prosecutor at the IDF’s Military Advocate-General’s Office, Col. (res.)
Jana Modgavrishvili, to head the department.

One of the most respected
and feared intelligence agencies in the world will now need to look over its
shoulder regarding its interrogation tactics, and every interrogator will need
to think twice about whether he will be as shielded from prosecution as he once
might have been.

The current system for investigating complaints against
Shin Bet interrogators was put in place in 1992 and at the time, was considered
an improvement on the prior system.

That system will be replaced by the
new Justice Ministry department headed by Modgavrishvili, by most accounts as a
result of the February 2012 recommendations of the Turkel Commission’s report,
which evaluated whether Israel’s internal apparatus for self-investigation met
international law standards. (Although the Turkel Commission was initially set
up to investigate allegations of violations of international law
surrounding the 2010 Mavi Marmara flotilla incident, it also received a mandate
to investigate the state’s entire self-investigation apparatus.) While most
areas of Israeli investigations, such as the IDF’s, were declared up to par, the
Shin Bet’s investigations were declared broken.

In its report, the commission appeared to endorse the Public Committee Against Torture
in Israel’s estimates that since 1992, out of 700 complaints, there have been
zero investigations – let alone indictments – of the Shin Bet.

According
to the report, the Shin Bet’s response to this allegation was not that the
statistics were untrue, but a broad attack on the complaints as being invalid
and motivated by Palestinian detainees’ anxiety that if they do not file such
complaints, they will be branded collaborators.

Apparently, neither the
Justice Ministry nor the Turkel Commission found this explanation sufficient to
explain a 100 percent rejection of the complaints, even if the explanation might
apply to some.

In 2007, the Justice Ministry itself investigated the Shin
Bet’s self-investigations and found that not only was the head of investigations
likely to be biased to “cover-up” for his colleagues, but that he was not even
qualified or trained to properly investigate the complaints.

The state’s
report found that the top Shin Bet investigator lacked the legal training and
comprehensive legal experience needed to be able to catch Shin Bet interrogators
in contradictions, especially where the interrogators themselves were seasoned
and excellent at covering their tracks.

Furthermore, the report said that
the head of investigations was not given and did not demand sufficient
documentation from the Shin Bet in order to even make an informed decision on
the cases.

All of this not from a left-wing human rights group, but from
the state itself.

As early as 2010, the state had recommended moving
investigations of the Shin Bet into the Justice Ministry under the authority of
the Internal Affairs Division, which investigates the police.

The
recommendation was ignored according to the Turkel Commission.

How far
the new appointment will go in transforming the functioning of the Shin Bet and
in leading to new criminal investigations of agents accused of violating legal
restraints on interrogation tactics will likely depend both on why this change
has really been made and on Modgavrishvili herself.

Here are two possible
narratives as to why this change is occurring.

On one end of the spectrum
would be the notion that the state has finally internalized that in an age of
battling delegitimization, it must proactively investigate itself, and
Modgavrishvili will be filing actual criminal cases against the Shin Bet before
we know it.

The argument here would be simply to take the state at face
value – in that the change has been intended since 2010, and while it was
delayed, this was due to the real complexities of making changes impacting
multiple government branches. The delay and complexities were exacerbated, since
the changes are inextricably tied to national security and the most classified
information in existence.

Another argument for this narrative is that the
change itself is so massive that the state would not agree to it in any fashion
if it was not wholly committed to it.

On the opposite end of the spectrum
would be the argument that it is a forced change to respond to the Turkel
Commission, whose independent mandate finally cornered the state into public
commitments to change – but that the change is in name only, and not in
substance.

This argument could be seen as having a significant
basis.

Although a top legal official assured The Jerusalem Post that the
process of creating the new department was well underway long before the Turkel
Commission issued its report, the commission itself did not seem to think
so.

Also, if such a major change was independently underway, why had it
taken so long, with no progress since 2010 on a state-run investigation that
started in 2007? Wouldn’t the state want to announce such big changes as soon as
they were even in process, to deflect already well-publicized criticism of Shin
Bet investigations and to avoid any appearance of having its hand forced by an
(even quasi) outside actor like the Turkel Commission? Instead, the state
significantly downplayed the change – which could signal that it does not take
it seriously, or could merely be a standard “saving face response” after making
a major change, so as not antagonize the Shin Bet more than
necessary.

While the state often says big institutional changes have
“unavoidable” delays, where there is a political will, delays can often be
overcome, as was the case when the IDF published its investigations of Operation
Pillar of Defense substantially faster than it had regarding Operation Cast
Lead.

Before the question of who was appointed, and how Modgavrishvili
herself may impact the issue, it is important to note who was not
appointed.

Almost immediately after the Turkel Commission announced its
recommendations, leaks came out that the head of the new, “more independent”
Ministry of Justice department would be, essentially, a “transferred” career
Shin Bet agent. He would be almost identical to his predecessors, except that
his office would physically be in the Justice Ministry.

While the
ministry denied the specific rumor, it did not generally oppose career Shin Bet
officers filling the new position.

What is more significant in
determining the state’s commitment to change, that it may have seriously
entertained appointing a career Shin Bet agent to head what is supposed to be a
new “non-Shin Bet” division, or that ultimately the state picked an ex-IDF
prosecutor and not a career Shin Bet agent? After all of these arguments,
according to another former head prosecutor at the IDF’s Military
Advocate-General’s Office, Col. (res.) Liron Libman, the choice of
Modgavrishvili itself indicates that the state means business.

Libman,
who was Modgavrishvili’s boss and predecessor as head IDF prosecutor, knew and
worked with Modgavrishvili for years and said she was a “great choice
personally, she has experience with security interrogations, the dilemmas and
difficulties, and is not coming to this without knowing the
issues.”

While very knowledgeable regarding the Shin Bet, he said she is
also “not from the Shin Bet, very independent, stands up for her views and
cannot be pushed around.”

In terms of choosing a career IDF legal
division retiree as opposed to either a career Shin Bet or Justice Ministry
candidate, Libman said it was definitely possible that the choice was “a
compromise” between the institutions – someone not beholden to either
institution, but highly familiar with both.

On the other hand, Libman
said that the choice of Modgavrishvili might also just be a reflection of her
being a “great candidate” and possibly “the best available at the right time.”
While Libman questioned the wisdom of predicting exactly how many indictments
she would file in the next six to 12 months, he admitted that for the Shin Bet
to have opened zero investigations until now “raised questions,” and said that
with Modgavrishvili at the wheel, “if there is a need to file indictments, there
will be indictments.”

In the final analysis, the judgment on
Modgavrishvili, how large of a revolution has occurred regarding investigating
the Shin Bet and how much the Shin Bet’s power has been reduced, is likely to
come from exactly that – how many investigations are opened over a particular
period of time. If there are none, the reform will not be taken
seriously.

If there are some, as one would expect, a new more nuanced
debate will probably begin about the particular cases.

Sites Of Interest

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